How can we go about applying Richard Posner’s formula to laws regulating protest slogans?
American economist Richard Posner’s economic formula on free speech can be highly useful in determining whether laws are good, which, from an economic perspective, means economically efficient. It was inspired by Judge Learned Hand’s simpler formula, which compares the harms of the expression (L), discounted by probability (P), to the costs of suppressing it (V, which is equivalent to the social values of the expression).
Posner improved Judge Learned Hand’s formula by adding “legal error costs” (E) to the costs of suppressing the expression, given that it can be challenging to distinguish harmful expressions that need to be suppressed and good ones that are not meant to be suppressed. In addition, given that the foreseeable harms may not happen immediately and may instead take place over a long period, the harms, measured in dollar terms, need to be discounted to the present for a valid comparison between costs and harms (the discount rate, i, is thus the inflation rate of the society, whereas n is the number of periods between the expression was made and the harms happen). If the foreseeable harms of the expression exceed the costs of suppressing it, then the law/legal regulation is good, and vice versa.
How about applying his formula to some laws and measures that were recently implemented?
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Germany recently amended its criminal code to prohibit the burning of national flags and symbols, both foreign and local. This law, while controversial, can be justified from an economic perspective by applying Posner’s formula. Burning flags and symbols invokes aggressive responses from nationalists and may lead to violence. Such disturbing responses tend to be immediate and quite likely would happen. Nonetheless, burning flags and symbols are often acts of protest against the nations and/or governments represented and, as such, do carry significant meanings. Given that the protesters can burn alternatives–such as constitutions, or life-size cardboard figures of politicians–to convey highly similar meanings, the ban causes a very small net reduction of social values. Because the foreseeable harms of the expression are likely greater than the costs of banning them, the law is economically efficient and good.
To apply the formula separately to a law banning the burning of other symbols, such as cardboard figures of politicians, the foreseeable harm would likely be smaller than the costs of prohibition. Burning these alternative symbols is likely less provocative–criticism of certain government figures, for example, would not likely evoke aggressive responses in fervent nationalists like burning national flags would. In fact, burning the figures of politicians is arguably an even more effective way of expressing discontent.
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How about applying the formula to the slogans in some recent protests in the Israel-Palestine conflict? The slogan “From the River to the Sea” is now banned in Berlin, and chanting it in other parts of Germany will likely get one in trouble. It is also banned in other European nations including Austria and France. The reason for the ban is due to its interpretation as a call for the termination of the state of Israel, and calling for genocide is a violation of hate speech laws in these countries. However, it is still legal in countries including the U.K., Canada, and the U.S.
In its original Arabic version, the slogan indeed carries the meaning of genocide. Taken literally and outside this context, the slogan may still carry sinister implications: if one is to draw a straight line running from the Jordan River to the Mediterranean Sea, parts of Israel would end up being annexed. Hence, the fears in Jewish communities are very justified. Applying the formula, the slogan calls for violence and would lead to grave harms; the harms might be likely and quite immediate–in fact, there has been a rise in violence of an anti-Semitic nature since the conflicts. The chanting of the slogan has not helped.
Many nonetheless argue that the slogan is only a call for freedom of Palestine from colonization by Israel. This is an important message that carries significant values. In fact, many chanting it likely do not even know its genocidal implications. One’s intention should count, and should matter the most, shouldn’t it?
The search for a more objective, reasonable interpretation may fail. If the chanters merely want to express support for a free Palestine state, is there any reason why this controversial slogan, which provokes fear of genocide and antisemitism, should not be replaced by alternatives that any reasonable person would not consider to carry genocidal implications, e.g. “Freedom to Palestinians!” “Freedom and Democracy for all Palestinians!” along with “Destroy Hamas!”?
These alternatives are less “cool” and less poetic, perhaps. But you want the slogans that carry precise messages, not something that can be deemed “dog-whistles.” They do not call for violence to any party and would much less likely invoke fear in Jewish people, but allow the same message to be expressed, arguably more precisely. The net loss in social values due to the ban on “From river to the sea” would be very small. The legal error costs of banning this particular slogan would also be low.
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All in all, the ban that is in place in many European states seems economically efficient and a good policy. Would any reader who disagree offer a strong counter-argument?